Gerrymandering case may hinge on First Amendment

In a recent Slate.com article, Mark Joseph Stern poses an intriguing question: Does partisan gerrymandering violate the First Amendment? His answer is yes, and I agree.

Gerrymandering is the practice of drawing lines around legislative districts for the purposes of influencing electoral outcomes by packing like-minded voters together or dividing them into tiny groups (called “cracking” by political scientists). This task of line-drawing is assigned to state legislatures by the Constitution. It takes place every 10 years, after the census, to accommodate population shifts. State legislatures often use this opportunity to design districts to increase the chances of a particular electoral outcome.

In its most craven form, gerrymandering has been used to pack or crack areas concentrated with African-American voters to limit their opportunity to elect a candidate from their community. In its most common form, gerrymandering is used by the party that dominates the state legislature to cement its control over that body and to enhance the number of its party members elected to the U.S. House of Representatives.

The practice of line-drawing to segregate voters based on race or ethnicity was ruled an unconstitutional violation of 14th Amendment’s Equal Protection Clause in the 1993 decision in Shaw v. Reno.

Gerrymandering for partisan purposes, however, has been practiced since the founding of the republic. (The term itself emerged from the 1812 partisan redistricting engineered by Massachusetts Governor Elbridge Gerry.) When the question has been placed before courts in the past, the justices have typically refused to hear the case, saying that these are political questions best resolved on Election Day. In other words, “to the victor go the spoils,” and if the voters don’t like how the victor is behaving, they can change that in two years’ time.

This year, however, things are different. The technology of voter identification and map-drawing have taken gerrymandering to a new level. Political consultants, data miners and map-designers work to handpick voters house-by-house and place them in districts that benefit the party in power.

Political scientists and mathematicians have developed methods for determining how significant these gerrymanders are in particular states — by looking at measures such as “efficiency gaps” and “wasted votes.” These experts have determined that in at least six states (Maryland, North Carolina, Ohio, Pennsylvania, Virginia and Wisconsin) gerrymandering is so extreme that the minority party has virtually no chance of increasing its share of seats in the state legislature or the U.S. House regardless of how many voters support that party statewide.

For example, in Ohio, the statewide vote for Congress in the last election was about 50-50. Yet thanks for clever line drawing, Republicans ended up outnumbering Democrats in that state’s Congressional delegation by 12 to 4.

Despite these imbalances, the Supreme Court has not found this process to be in violation of any constitutional principle. At least not yet. But now attention is turning to a fundamental First Amendment freedom: the freedom of association.

The First Amendment has been long interpreted to protect a citizen’s right to freely associate with whomever he or she wishes without fear of harm or disadvantage. Any efforts by any level of government to interfere with this fundamental freedom would be deemed an unconstitutional violation of that citizen’s individual liberty.

In October 2017, oral arguments were made in a case that challenges Wisconsin’s district map. In this case, Gill v. Whitford, the Democratic plaintiffs argue that, in its line-drawing, the Republican legislature has deprived Democrats of this fundamental freedom. The argument is that the Wisconsin redistricting schemes categorized voters on the basis of their political affiliation and placed Democrats in districts that diminished the power of their votes.

Court watchers know that Justice Anthony M. Kennedy is particularly interested in the protection of First Amendment freedoms. In his concurring opinion in the 2004 Vieth v. Jubelirer redistricting case, Kennedy signaled this concern when he wrote: “The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.”

Given Kennedy’s statements, the plaintiffs’ attorneys in the Gill case have offered Kennedy the opportunity to join the four liberals on the Court in overturning Wisconsin’s map on the grounds that it deprives that state’s Democrats of their right to freedom of association. In the initial complaint in Gill v. Whitford, the plaintiffs argue: “Democratic voters in the state of Wisconsin have a First Amendment right to freely associate with each other without discrimination by the State based on that association; to participate in the political process and vote in favor of Democratic candidates without discrimination by the State because of the way they vote; and to express their political views without discrimination by the State because of the expression of those views or the content of their expression.”

The argument follows then, that district maps that pack or crack Democrats based on their political association punish them for that association and thus are unconstitutional.

Should this First Amendment argument persuade Justice Kennedy, leading him to join the liberal four in overturning Wisconsin’s map on First Amendment grounds, that would mark the first time the Supreme Court has ruled that a partisan gerrymander is unconstitutional.

The political consequences of such a decision would be significant. Republican-drawn maps in Wisconsin, North Carolina, Ohio and Virginia could be overturned, as could the Democratic map in Maryland. The redrawn maps would produce a significant redistribution of political power, possibly as soon as the 2018 midterms and certainly in time for the 2020 elections and the redistricting battles that will follow the 2020 census.

And this would occur because one justice, the swing justice, would see that the First Amendment’s guarantee of free association supersedes the political parties’ hunger for power.

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RWU First Amendment Blog

Dedicated to the discussion of the five freedoms guaranteed by the First Amendment: freedom of religion, speech, the press, to assemble peaceably and to petition the government for a redress of grievances. This blog draws on the expertise and passion of RWU faculty, staff, alumni and students with inspiration from the university’s namesake, Roger Williams. The views expressed are those of the authors, not RWU as a whole.